ANTONIO TRASENTE, D.J. DEVELOPMENTS PTY LIMITED v KIRSTY MCCREIGHT (No 2) [2026] SADC 75

First Applicant: ANTONIO TRASENTE Counsel: MR P BULLOCK SC - Solicitor: HWL EBSWORTH LAWYERS Second Applicant: D.J. DEVELOPMENTS PTY LIMITED Counsel: MR P BULLOCK SC - Solicitor: HWL EBSWORTH LAWYERS Respondent: KIRSTY MCCREIGHT Counsel: MR E GUTHRIE - Solicitor: FBR LAW Hearing Date/s: 25/06/2026 File No/s: CIV-24-000062 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ANTONIO TRASENTE, D.J. DEVELOPMENTS PTY LIMITED v KIRSTY MCCREIGHT (No 2) [2026] SADC 75 Judgment of his Honour Judge Burnett 2 July 2026 EVIDENCE - ADMISSIBILITY - HEARSAY - EXCEPTION: DOCUMENTS - BUSINESS AND COMPUTER RECORDS DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL - EVIDENCE This judgment concerns the admissibility at trial of two documents which the applicants have tendered pursuant to s 53 of the Evidence Act 1929 (SA)(the Evidence Act). The respondent accepts that the documents are apparently genuine documents purporting to be business records but contends that, pursuant to each of the safeguards provided for in s 53(2) of the Evidence Act, the documents must not be admitted in evidence. The second applicant is a builder. The first applicant is a director of the second applicant. The second applicant entered into a contract with the respondent and her husband for the construction of a residential property. QBE Insurance Group (QBE) is the builders warranty insurer of the second applicant. The applicants claim that on two separate occasions the respondent published oral statements that were false, and which were defamatory of the first applicant. The applicants bring their claim in defamation and injurious falsehood. The first of these claims related to a telephone call allegedly made to QBE in which it is alleged that the respondent said that the second applicant was in financial trouble. As a result of that communication, it is alleged that for a period of time, QBE suspended its insurance policy with the second applicant. The two documents which are sought to be tendered are business records of QBE and were obtained on subpoena. The first, an email dated 15 November 2022, is written by a representative of QBE, and refers to the respondent (identified as the home owner of the relevant risk) making a telephone call to QBE in which she said that the second applicant was in financial trouble. The maker of that -- 1 of 19 -- email has no recollection of the telephone call and is not proposed to be called by the applicants. The second document is a database record of QBE which refers to the respondent (again identified as the home owner of the relevant risk) calling and saying that the second applicant had financial concerns. The identity of the person who made that record cannot be ascertained. Held: (1) The documents are admissible pursuant to s 53 of the Evidence Act. None of the safeguards set out in s 53(2) apply such that the documents should not be admitted into evidence. (2) Section 53(2)(a) means that if there is a (natural) person by whom, or at whose direction, the document was prepared, and that person can and should be called by the party tendering the document to give evidence of the matters contained in the document, the document must not be admitted under s 53(1): Tara Hills Pastoral Pty Ltd v Dolan [2025] SASC 200 applied. If it is on the cards that there must be a person who prepared or directed the preparation of the document and it is on the cards that they could give meaningful evidence about the matters contained in the document, then the admissibility of the documents under s 53(2)(a) will depend on the evidence relating to ascertaining the person’s identity and availability: Tara Hills Pastoral Pty Ltd v Dolan [2025] SASC 200 applied. (3) In the present case, on the evidence available to the Court, it was not on the cards that the maker of the 15 November email could give meaningful evidence and s 53(2)(a) was not engaged. The identity of the person who made the QBE database record cannot be ascertained and therefore it cannot be said that person should be called as a witness, (4) The fact that the documents are relevant to a critical issue is a relevant factor in considering whether a person who prepared the document should be called but is not determinative and each case should be considered on its own particular circumstances: Motor Accident Commission v Raccanello [2025] SASCA 146 considered. (5) Section 53(2)(b) requires a document not to be admitted if the evidentiary weight of the document is slight and outweighed by the prejudice suffered by the other party if the document is received into evidence. This requires the Court to look at the reliability and accuracy of the document: Tara Hills Pastoral Pty Ltd v Dolan [2025] SASC 200 applied. (6) An oral defamation (such as that found in the present case) may be proved by business records and need not be proved only by direct testimony of a witness who heard the defamation: Chapman v Allan (1999) SASR 274, Wilson v Basson [2019] NSWSC 1449 considered. (7) The fact that the document contained multiple hearsay did not mean that the document was necessarily unreliable and could not be admitted under s 53: Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554, Tara Hills Pastoral Pty Ltd v Dolan [2025] SASC 200 applied. (8) There were a number of facts concerning the circumstances in which the documents were prepared which, collectively, lead to the conclusion that the documents were reliable and the evidentiary weight was not slight. Section 53(2)(b) was not engaged. (9) Section 53(2)(c) requires consideration of questions of oppression and unfairness and any other matter relevant to the interests of justice: Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554 applied. The respondent contended that the same matters which were relevant to the application of s 53(2)(a) and s 53(2)(b), applied to consideration of whether s 53(2)(c) rendered the documents inadmissible. It therefore follows that s 53(2)(c) is not engaged. Building Work Contractors Acts 1995 (SA); Defamation Act 2005 (SA) s 7; Environment Protection Act 1993 (SA); Evidence Act 1929 (SA) ss 53, 53(1), 53(2), 53(3), 53(4), 45A, 45A(2); Uniform Civil Rules 2020 (SA) s 67.2(2)(c), referred to. Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; Hillier v Lucas (2000) 81 SASR 451; The Queen v Calabria (1982) 31 SASR 423; Crossley v State of South Australia [2020] SADC -- 2 of 19 -- 14; Tara Hills Pastoral Pty Ltd v Dolan, Rollond v Dolan [2025] SASC 200; Chapman v Allan & Draper (1999) 74 SASR 274; Chapman v Allan (1998) 200 LSJS 226; Gatley on Libel and Slander (Sweet & Maxwell, 7th ed,1296); Wilfred Alan Button, ‘Principles of the Law of Libel and Slander’ (Sweet & Maxwell, 2nd ed, 1935); Wilson v Basson [2019] NSWSC 1449; Hillier v Lucas (2000) 81 SASR 451; Motor Accident Commission v Raccanello [2025] SASCA 146, applied. -- 3 of 19 -- -- 4 of 19 -- ANTONIO TRASENTE, D.J. DEVELOPMENTS PTY LIMITED v KIRSTY MCCREIGHT (No 2) [2026] SADC 75 Civil Introduction 1 This judgment concerns the admissibility of two documents which have been tendered by the applicants during the course of the trial as business records under s 53 of the Evidence Act 1929 (SA) (the Evidence Act). The two documents are business records of QBE Insurance Group (QBE) and were obtained on subpoena. The admissibility of the documents is critical to one of the claims that have been brought by the applicants for defamation and injurious falsehood. If the Court determines that the documents are not admissible, the applicants will consider whether they are in a position to proceed with that claim and may seek an adjournment of the trial. 2 The respondent objects to the tender of these documents. The respondent accepts that the documents are apparently genuine documents purporting to be business records, but submits that pursuant to s 53(2) of the Evidence Act, the documents must not be admitted because: (1) the person by whom each of the respective documents was prepared can and should be called by the applicants to give evidence of the matters contained in the documents; and/or, (2) the evidentiary weight of the documents is slight and is outweighed by the prejudice that might result to the respondent from the admission of the documents into evidence; and/or, (3) it would be otherwise contrary to the interests of justice to admit the documents into evidence. 3 For the reasons set out below, the Court rules that the documents are admissible in evidence. The claim and the trial 4 The applicants claim that on two separate occasions the respondent published oral statements that were false and which were defamatory of the first applicant. The applicants bring claims in defamation and injurious falsehood. The first applicant, Antonio Trasente, is a director of the second applicant, D.J. Developments Pty Limited. The second applicant carries on business as a builder. 5 The second applicant entered into a contract with the respondent, Kirsty McCreight, and her husband, Mr Mills, for the construction of a residential property at Henley Beach on land owned by the respondent and Mr Mills. There is a building dispute between the parties which is separate to these proceedings. QBE is the builder’s warranty insurer of the second applicant. Under the Building Work -- 5 of 19 -- [2026] SADC 75 2 Contractors Acts 1995 (SA), a builder works contractor must not perform building work unless they have a policy of insurance that is in force in relation to that building work. 6 It is the claim relating to the first of the alleged publications that is the subject matter of the admissibility of the two documents. The applicants plead in paragraphs [15]-[17] of the statement of claim-revision 5 that: [15] On around 14 November 2022, the respondent made a telephone call to an employee of QBE in relation to the solvency of the applicants. During that call, the respondent: [15.1] identified herself a clients of the applicants; and [15.2] made the statement, or a statement to the effect that “the builder is in financial trouble”(the First Publication). [16] The First Publication expressly referred to, and was understood to refer to, the applicants. [17] The respondent published the First Publication to, at the very least, an employee at QBE named Le Hong Do or, in the alternative to an employee at QBE named Katrina who republished the First Publication to Ms Do. 7 The applicants had proceeded on the basis that the respondent spoke directly to Ms Do. They did so because Ms Do was the author of an email dated 15 November 2022 which made reference to the telephone call from the respondent. There was nothing in the defence of the respondent that alerted the applicants to the fact that Ms Do might not have been the person to whom the respondent had spoken. The defence-revision 2 filed on 2 December 2025 denies paragraphs [15]-[17] and says that if the respondent published the First Publication, she did so on 14 November 2022 during the course of a telephone call to a QBE representative to enquire about the status of the second applicant’s insurance. The defence did not plead that the telephone call between the respondent and the representative of QBE was not with Ms Do but was with someone called Katrina. The pleading rules set out in the Uniform Civil Rules 2020 (SA) (UCR) 67.2(2)(c) require that a pleading give fair notice of the party’s case to the opposing party so as to avoid the opposing party being taken by surprise at or in preparation for trial. UCR 67.2(2)(c) requires the respondent to plead that the phone call was with Katrina (or some other representative of QBE) and not Ms Do, if that was the case. 8 On 22 May 2026, the respondent filed her trial affidavit in which she said that she had a telephone conversation on 14 November 2022 with someone at QBE called Katrina and that she did not have any discussion with Ms Do. This was the first occasion in which the respondent had identified Katrina as the person at QBE with whom she had the telephone conversation. 9 At the commencement of the trial, senior counsel for the applicants advised the Court that the applicants intended to amend their claim in the form of revision -- 6 of 19 -- [2026] SADC 75 3 5 of the statement of claim. The statement of claim had previously pleaded that the respondent published the First Publication to, at the very least, an employee of QBE named Le Hong Do. Leave was granted during the course of the trial for the applicant to amend their statement of claim in the form of statement of claim- revision 5. The two documents tendered 10 The first document which the applicant tendered (tab 41 of MFI A3) is the email dated 15 November 2022 from Ms Do to the insurance broker at the South Australian House Industry Association Insurance Service (SAHIAIS) (the 15 November email). This email was received by a Ms Latsonis, an insurance broker at SAHIAIS. The second applicant arranged its builders warranty insurance through the SAHIAIS. The email was sent during the time that the building contract between the second applicant and the respondent was being performed. The email read: We have received a phone call from the homeowner of Risk 75 alleging that the builder is in financial trouble. Please seek builder’s commentary regarding this. Please submit the annual review which is now overdue. Kind regards Le Hong Do Underwriter-Builders Warranty QBE 11 By way of explanation, there is evidence in the trial that the respondent and her husband are the homeowners of Risk 75. Each year, the insured under builders warranty insurance with QBE is required to submit an annual review to QBE which provides details of their financial position. The annual review of the second applicant 12 The solicitors for the applicants have made contact with Ms Do who advised them that she had no recollection of the call made by the respondent to QBE on 15 November 2022. Ms Do further advised that she no longer worked with QBE and had been very busy learning new processes in her new role and did not recall QBE processes and thus was not prepared to make a statement. More recently, Ms Do advised, through an automated email, that she was on maternity leave. 13 The solicitors for the applicants also made contact with QBE and asked to speak with an employee in their builders’ warranty team named Katrina. QBE advised that Katina no longer worked at QBE and declined to provide Katrina’s full name or where she now worked. 14 The parties agreed to proceed on the basis that the second document (tab 82 of MFI A4) was a record of a telephone conversation made to QBE (the QBE -- 7 of 19 -- [2026] SADC 75 4 database record). Further questions as to who made the record and what it means would be a matter for submissions, if the document were received into evidence at trial. The document recorded: H.O. Risk 75 called alleging builder has financial concerns. Followed up Review LHD 15112022. 07/02/2023-Explanation re phone call and review received. Status Reactivated SC. 15 There was evidence from the applicants and Ms Latsonis that the builders warranty insurance of the second applicant with QBE had been suspended following the phone call made by the respondent to QBE on 15 November 2022. Legal principles 16 Section 53 of the Evidence Act is in the following terms: 53—Admission of business records in evidence (1) An apparently genuine document purporting to be a business record— (a) is admissible in evidence without further proof; and (b) is evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence). (2) A document must not be admitted in evidence under subsection (1) if the court is of the opinion— (a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or (b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or (c) that it would be otherwise contrary to the interests of justice to admit the document in evidence. (3) For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters. (4) In this section— business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality; business record means— -- 8 of 19 -- [2026] SADC 75 5 (a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or (b) any reproduction of any such record by photographic, photostatic, lithographic or other like process. 17 Section 53 (and its predecessor s 45A) are remedial in character.1 Section 53 has been designed to allow the tender of documents where the maker of documents is not called. The section should be given a broad construction. It gives a wide discretion for the admission of documents containing hearsay. In order to give full effect to the remedial purpose of the section, the dangers associated with unreliable material should be met by providing safeguards to protect the parties against injustice.2 18 In Southern Equities Corp (in liq) & Ors v Bond & Ors (Southern Equities),3 Lander J discussed the operation of s 45A which at that time contained the provisions relating to the admissibility of business records. Section 45A was in virtually identical terms to s 53. 19 Lander J observed, in relation to s 45A (which applies equally to s 53):4 Business records are often compiled by a number of different persons and on information supplied by persons other than the collater of the records. Business records regularly include hearsay and often hearsay upon hearsay: Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 at 548-549. I do think that Parliament intended in enacting s 45A to make business records admissible so as to include in those records hearsay material which would, if given orally, be inadmissible. The very purpose of the section is to facilitate proof of matters which either could not previously be proved or alternatively could only be proved with a degree of difficulty. If s 45A only allowed business records which did not contain hearsay evidence to be tendered the section would have very little work to do. Indeed if that was its only purpose it is difficult to understand why this section would have been enacted because s 45B would fulfil that same limited function. Therefore, in my opinion, s 45A is intended to make hearsay material contained in business records admissible. That does not mean that every document which contains hearsay material will be admissible under s 45A. As I have already explained the safeguards which are available in s 45A(2) will operate to exclude evidence which is unreliable by reason of hearsay evidence. 20 Lander J also referred to s 45A(2) (the then equivalent to s 53(2)) and observed that those provisions had been enacted to provide safeguards to the party 1 Hillier v Lucas (2000) 81 SASR 451; [2000] SASC 331, [182]; The Queen v Calabria (1982) 31 SASR 423, 430. 2 Ibid, [183]. 3 (2001) 78 SASR 554; [2001] SASC 70. 4 Ibid, [189]-[191]. -- 9 of 19 -- [2026] SADC 75 6 against whom the document is sought to be tendered against the capricious use of the section.5 Lander J went on to hold:6 Section 45A(2) recognises that the document is otherwise admissible, having been made admissible by the document conforming with the matters in s 45A(1). However whilst the document might be otherwise admissible by virtue of s 45A(1) the Court has a discretion in s 45A(2) to refuse the tender of that document for any of the reasons in s 45A (2). By way of an example, the matter in s 45A(2)(b) is the Christie discretion applied to a document which is otherwise admissible by virtue of s 45A(1). Parliament has seen fit to include the Christie discretion to allow the Court to reject the tender of an otherwise admissible document in both criminal and civil proceedings. There can be no doubt that this safeguard or discretion applies to all legal proceedings when documents are sought to be tendered under s 45A or s 45B. Section 45A(2)(c) would give rise to questions of oppression and unfairness, and any other matter relevant to the question of the interests of justice. That is not unlike the discretion identified in Driscoll v The Queen (supra). Section 45A(2)(a) requires the Court to consider whether the person by whom or at whose direction the document was prepared should be called. In that consideration the purpose of the section should not be overlooked. The section has been enacted to provide for the admissibility of documents without the need for the calling of the person who prepared the document. It is not enough therefore for the party opposing the tender to insist as a matter of form upon that person being called. Again the considerations in s 45A(2)(a) only arise after it has first been established that the document is an apparently genuine document and is a business record having been prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business. Therefore the safeguard or the discretion in s 45(2)(a) does not operate to require the party tendering the document to call the person referred to in s 45A(2) to prove the genuineness of the document, or to prove that it is a document which has been prepared or used in the ordinary course of business for the particular purpose in s 45A(4). In a consideration of the matters under s 45A(2)(a) the person by whom or whose direction the document was prepared is called "to give evidence of the matters contained in the document." Ordinarily the party tendering the document would not be called upon to call a person by whom or at whose direction the document was prepared except to establish the accuracy of the matters recorded in the document. The Court can reject the tender under s 45A(1) if it is of the opinion that the person by whom or at whose direction the document was prepared can and should be called by the party to give evidence of the matters contained in the document. The Court must therefore be satisfied in a consideration of a rejection of the tender that the party by whom or at whose direction the document was prepared is available to be called by the party tendering 5 Ibid, [154]. Lander J in Southern Equites referred to the statement by King CJ In The Queen v Calabria (1982) 31 SASR 423, 430 that the safeguards consisted of discretion vested in the trial judge to exclude the document on the widest of grounds. Even though s 53 requires the Court to form an opinion, the mandatory nature of the wording in s 53 is more akin to a safeguard than the exercise of a discretion. Now that the correctness standard has been held to apply to the admissibility of documents, it is more appropriate to refer to these provisions as safeguards rather than discretions. 6 Ibid, [55]-[163]. -- 10 of 19 -- [2026] SADC 75 7 the document and in all the circumstances, it would be appropriate to require that party to call that person. Therefore, in a consideration of s 45A(2)(a) the following must be addressed. First whether the party seeking to tender the document can, in the sense is able to, call the person by whom or at whose direction the document was prepared. Secondly whether that party should call that person. Both those matters depend upon the Court being of the opinion that the person by whom or at whose direction the document has been prepared can and should be called to give evidence of the matters contained in the document and only in relation to that matter. 21 A document which is an apparently genuine document is admissible in evidence without further proof subject to the application of the safeguards provided for in s 53(2). These safeguards were discussed in Crossley v State of South Australia (Crossley)7 and in Tara Hills Pastoral Pty Ltd v Dolan, Rolland v Dolan (Tara Hills Pastoral).8 22 In Crossley, the defendant sought to tender a note from the Royal Adelaide Hospital (the RAH note) as a business record pursuant to s 53 of the Evidence Act. The RAH note recorded that the plaintiff’s blood alcohol reading at 6.15am as 0.083. The evidence established that this reading was taken by an unknown person using a portable handheld device which displays a reading which is then handwritten into the nursing notes, i.e. the RAH note. There was also a police record which noted a blood alcohol reading of 0.038 at 6.30am. 23 Judge Tilmouth observed that the cumulative weight of the material confirmed that the plaintiff was not obviously inebriated and therefore the more probable reading was 0.038. That being the case, the supposed level of 0.083 was even less probable and because of the potentially drastic effect the higher level would have on the plaintiff’s credibility and reliability, the document should not be admitted under s 53(2)(b) or under s 53(2)(c). 24 Tara Hills Pastoral involved an appeal to B Doyle J by the appellants from their convictions in respect of a number of offences under the Environment Protection Act 1993 (SA). One of the grounds of appeal concerned the admissibility of google earth images of the land in question as accurately depicting the state of that land on the dates indicated in those images. These images were relevant to the proof of offences by the appellant involving the disposing of tyres and contaminated soil. The images were admitted into evidence by the trial Judge but as the correctness standard applied to appellate consideration of a decision not to exclude evidence,9 B Doyle J had to consider whether the documents were properly admitted under s 53. B Doyle J considered each of the safeguards set out in s 53(2). It was accepted that the compilation of the images likely involved multiple hearsay and that the date specified in the images might be inaccurate due 7 [2020] SADC 14. 8 [2025] SASC 200. 9 Ibid, [162]. -- 11 of 19 -- [2026] SADC 75 8 to human error. B Doyle J held that the images were not required to be excluded by reason of s 53(2). 25 In relation to s 53(2)(a), B Doyle J held that:10 Construing the provision purposively, it should be taken to mean that if there is a (natural) person by whom, or at whose direction, the document was prepared, and that person can and should be called by the party tendering the document to give evidence of the matters contained in the document, the document must not be admitted under s 53(1). 26 In answering the questions posed by such a formulation, B Doyle J held that the inquiry must be directed, first, at whether it is on the cards that there must be a person who prepared or directed the preparation of the document and secondly, whether it was on the cards that they could give meaningful evidence about the matters contained in the document.11 If those two questions are answered in the affirmative, then the admissibility of the documents under s 53(2)(a) will depend on the evidence relating to ascertaining the person’s identity and availability. 27 In relation to s 53(2)(b), B Doyle J held that the concept of evidentiary value invites attention to the reliability and accuracy of the document as distinct from the significance of the facts asserted in the document.12 In considering whether the evidentiary value is slight, it may be necessary to consider what is known about the source from which the document is produced and any safeguards that may have been taken to ensure its accuracy.13 In some cases, the unreliability of the document may be such that the evidentiary value of the document is slight. 28 In relation to s 53(2)(c), wider considerations will apply. Unfair prejudice to the other party will be a relevant consideration, for example in not being able to meaningfully cross-examine the maker of the document.14 Also potentially relevant may be the prejudice that is caused by breaches of procedural rules such as the failure to disclose or produce the document at the required time in accordance with court orders or the UCR. In Tara Hills Pastoral, B Doyle J held that in the circumstances of that case, the fact that the google images were provided shortly before trial did not render their admission contrary to the interests of justice.15 In Southern Equities, Lander J held that s 45A(2)(c) (now s 53(2)(c)) gives rise to questions of oppression and unfairness, and any other matter relevant to the interests of justice.16 Determination 29 The respondent opposed the tender of the 15 November email and the QBE database record on the basis that each of the safeguards set out in s 53(2) applied 10 Ibid, [169]. 11 Ibid, [170]. 12 Ibid, [174]. 13 Ibid, [175]. 14 Ibid, [180]. 15 Ibid. 16 [2001] SASC 70, [157]. -- 12 of 19 -- [2026] SADC 75 9 to render both documents inadmissible. The respondent advanced overlapping arguments which, it contended, required the exclusion of the documents on all three grounds set out in s 53(2). The respondent contended that because of the multiple hearsay nature of the documents, and hence their unreliability, and the fact that the documents seek to prove a crucial fact in issue, there would be manifest prejudice to the respondent if the documents were admitted into evidence. In these circumstances, the respondent submitted that each of s 53(2), (a), (b) and (c) was engaged. Section 53(2)(a) 30 The respondent submitted that in addition to those matters discussed above (which will be discussed later in these reasons), the publication of a contested slander must be proved by direct testimony from someone who heard the words spoken and could not be proved by inference from documents or surrounding evidence. In support of that submission, the respondent referred to the decision of the Full Court in Chapman v Allan,17 and passages from Gatley on Libel and Slander (Gatley) and Button Principles of the Law of Libel and Slander (Button).18 Those texts were quoted in the decision of the trial Judge in Chapman v Allan.19 The passage from Gatley stated:20 In an action for slander the plaintiff may succeed in getting the defendant to admit in answers to interrogatories that he spoke the words complained of; and publication may be proved by putting in the answers. But if no such admission is obtained, or if the defendant denies in the answers that he spoke the words, the plaintiff must call those who were present and heard him. The witness must prove the actual words alleged to have been published; it is not sufficient for them to state what they conceive to be the substance or effect of the words, or their impression of what was said. The passage from Button stated: In the case of slander, publication must be provided out of the mouth of that indispensable who heard the slander uttered. 31 I do not consider that these passages are setting out an absolute rule that the only way in which slander may be proved is by direct testimony by someone who heard the slander. The Full Court in Chapman v Allan expressly observed that the document in question in that case was not tendered pursuant to the business records provisions. The Full Court held:21 Whilst the article was admissible in the case against Draper to prove the contents of the article, the article could not be tendered to prove the truth of those assertions. This article was not tendered pursuant to s45B of the Evidence Act and the plaintiffs were not entitled to rely upon the provisions in that section to establish the statements of facts asserted in the article. Section 45B was not adverted to at any time by any party and the Judge did not 17 (1999) 74 SASR 274, [1999] SASC 460. 18 W.A. Button Principles of the Law of Libel and Slander (Sweet & Maxwell, 2nd., ed, 1935) 19 Chapman v Allan [1998] SADC 1314, [196] and [198]. 20 Gately on Libel and Slander (Sweet & Maxwell, 7th ed, [1296]). 21 (1999) 74 SASR 274, [1999] SASC 460, [133]. -- 13 of 19 -- [2026] SADC 75 10 address the question of the article's admissibility under that section and in particular the discretion to exclude in s45B(3). The plaintiffs did not argue at trial or on appeal that they were entitled to rely upon s45B in aid of proof of publication. 32 Further, Chapman v Allan was decided prior to the introduction of the Defamation Act 2005 (SA). Pursuant to s 7 of the Defamation Act, the distinction between libel and slander was abolished. This suggests that if there was an absolute rule pertaining specifically to the proof of slander, that rule no longer applies and the ordinary rules of evidence apply. Defamation may be proved in a number of way. Section 53 is part of the armoury available to a party to prove facts in issue, including the making of an oral defamation. In Wilson v Basson,22 in the context of an argument in relation to pleadings, it was held that where the plaintiff was not present when the alleged slander was spoken, the plaintiff will have to rely upon reports of others as to what was said and using those reports reconstruct and plead what is alleged to have been said.23 This suggests, although it is not definitive, that methods other than direct testimony, might be used to prove a slander. 33 For all of these reasons, the Court finds that there is no absolute rule that the oral defamation must be proved by direct testimony or that in the absence of a witnesses being called, the oral defamation cannot be proved through business records. 34 The respondent contended that even if there is no absolute rule in cases of oral defamation, the Court should not admit the 15 November email or the QBE database record because it is through these documents that the applicants seek to prove a critical fact in issue. In such a case, the respondent says that s 53(2)(a) of the Evidence Act applies and the applicant should call the person who prepared the documents . In support of that submission, the respondent referred to the decisions in Hillier v Lucas (Hillier)24 and the Motor Accident Commission v Raccanello (Raccanello).25 In Hillier, Lander J, (Duggan and Bleby JJ agreeing), held:26 In respect of s 45A, a party against whom a business record is sought to be tendered is entitled to object to the tender if the person by whom or at whose direction a document was prepared could and should be called by the party seeking to tender the document to give evidence of the matters contained in the document, or that it would be otherwise contrary to the interests of justice to admit the document in evidence. The circumstances where a court might refuse to admit a business record because the author of the document should be called, or because it would be otherwise contrary to the interests of justice, will be many and varied. If the fact which is sought to be proved by the tender of the document is critical to one or other of the parties' case, and there is a dispute about that fact, and the author is available 22 [2019] NSWSC 1449. 23 Ibid, [29]. 24 (2000) 81 SASR 451; [2000] SASC 331. 25 [2025] SASCA 146. 26 (2000) 81 SASR 451, [184]-[187][2000] SASC 331. -- 14 of 19 -- [2026] SADC 75 11 to be called, then it would occasion no hardship to the party seeking to tender the document to be required to call the author. At the same time, it would not negate the remedial effect of s 45A. 35 Again, that passage in Hillier is referrable to the circumstances of that case. Where the author of the document was available to give evidence and was able to give relevant evidence, then the fact that the document is relevant to a critical issue means that the Court is more likely to reach the opinion that the person who prepared the document should be called. 36 In Raccanello, one of the issues before the Court on appeal was whether certain records should have been admitted into evidence as business records. Livesey P referred to the judgment of Lander J in Hillier and held that the ruling in that case did not determine how the business records provision should be applied in the appeal before the Court. Hillier was held to be clearly distinguishable.27 Each case will depend on its own particular circumstances which will be relevant to the Court’s consideration as to whether the person who prepared the document should be called. In Raccanello, those factors, inter alia, included: (1) the doctors had not seen Mr Raccanello for more than 12 years and it was difficult to see why it was necessary to call these doctors to give evidence about their histories, findings on examination and opinions;28 (2) the doctors were not in the camp of the appellant; (3) the respondents were not prejudiced by the tender of the reports where Mr Raccanello and the experts that he called had the opportunity to be cross-examined about what was in the reports and had an opportunity to express their views; and (4) the issues were not critical to the outcome of the case.29 37 There will be a number of factors that will be relevant to the Court forming an opinion whether or not the person who prepared the document should be called and the fact that the document is relevant to a critical fact in issue is just one of those factors. 38 In the present case, it is clear that Ms Do prepared the 15 November email. The applicants submitted that the court could not be satisfied that Ms Do was available to give evidence. I do not accept that submission. The applicants have been communicating with Ms Do at her new workplace. There is no evidence to suggest that she is unavailable and cannot be contacted. 27 [2025] SASCA 146, [662]. 28 Ibid, [695]. 29 Ibid. -- 15 of 19 -- [2026] SADC 75 12 39 However, I do not consider that it is on the cards that Ms Do could give meaningful evidence about the matters contained in the document. The evidence before the Court is that Ms Do does not have any recollection of the call, that she no longer worked with QBE and had been very busy learning new processes in her new role and did not recall QBE processes and thus was not prepared to make a statement. It is not surprising that Ms Do, given her then position at QBE as an underwriter would not have a specific recollection of a particular conversation. Also relevant are some of the matters referred to in Raccanello, including that Ms Do could not be considered as being in the applicants’ camp (the documents were obtained on subpoena) and that the respondent was able to give evidence and be cross-examined about the call that she made to QBE. 40 Against these matters, the 15 November email (and the QBE database record) are critical to the outcome of the case. The respondent further submitted that she wished to cross-examine Ms Do to ascertain whether she had any recollection of the telephone call. However, it is the case of the respondent that she does not have any recollection of the telephone call because it was not made to her. That accords with other evidence in the case, and in particular the evidence of Ms Latsonis. In these circumstances, the desire of the respondent to cross-examine Ms Do does not require Ms Do to be called when it is found that it is not on the cards that she could give relevant evidence. 41 The respondent also submitted that if Ms Do is not able to give relevant evidence, the evidentiary value of the document is slight, and the document is unreliable. I do not accept that to be the case. The evidentiary value of the document is not solely dependent on Ms Do’s recollection but will depend on the circumstances in which the document was made. 42 In the case of the 15 November email, taking into account all of the above matters, the Court is not of the opinion that Ms Do should be called. 43 In the case of the QBE database record, the applicants are not able to ascertain the identity, and it follows, the availability, of the person who prepared the document. Therefore, it cannot be said that the person who prepared the document should be called as a witness. 44 As set out later in these reasons, the fact that the documents contain multiple hearsay, is not, in the circumstances, a basis to find that the document should not be admitted in evidence because of any of the safeguards contained in s 53(2). 45 The Court therefore finds that s 53(2)(a) is not operative and does not provide a basis for refusing to admit either the 15 November email or the QBE database record into evidence. Section 53(2)(b) 46 As to s 53(2)(b), the respondent submitted that there were a number of reasons why the Court should find that the evidentiary weight of each of the -- 16 of 19 -- [2026] SADC 75 13 documents was slight and outweighed by the prejudice that the respondent would suffer if the documents were admitted into evidence. The respondent placed significant reliance on the fact that the 15 November email contained multiple hearsay from an unidentified person who received the call at QBE and then conveyed the information to Ms Do as set out in the email. In these circumstances, the respondent submitted that the reliability of the 15 November email could not be assured or tested. There was no safeguard as to the accuracy of the respondent’s words, either when first conveyed to a person at QBE or when conveyed from that person to Ms Do. The respondent referred to the lack of any evidence as to the safeguards that might be in place at QBE to ensure the accuracy of the documents. The respondent contended that the evidentiary weight of the 15 November email was negligible and outweighed by the prejudice of allowing a critical fact in issue to be decided on untested multiple hearsay. 47 The respondent also referred to a number of matters relating to the content of the email that suggested it was unreliable. The respondent referred to: (1) the reference in the email “We have received a phone call;” (2) the call being from “the homeowner of Risk 75;” (3) the email not being recording what was said in direct speech but only stating that the builder is in financial trouble; and (4) the refence to “financial trouble” in the email differs from “financial concerns” in the QBE database record. 48 Dealing first with the content matters, the reference to “we” in the email does no more than confirm or at least support the inference (which accords with other evidence) that Ms Do was not the recipient of the telephone call from the respondent. This leads to the conclusion that the email contains multiple hearsay. 49 The reference to the homeowner of Risk 75 simply means that the applicants will need to adduce evidence identifying who is that homeowner who made the call. The respondent submitted that it could be that the respondent’s husband made the call and that he would also fall within the description of the homeowner of Risk 75. That may be so, but the identification of the person who made the call will be made at the conclusion of the case. The respondent has admitted in her defence that she made a telephone call to QBE at the relevant time. 50 The email does not purport to be direct speech but is a very short record of what was said to the QBE representative. I do not consider that the failure to express the message in direct speech detracts from its reliability. 51 The difference between the two expressions, “financial trouble” and “financial concerns” are not so great as to cast doubt on the reliability of the documents. The two expressions perhaps represent slightly different levels of financial impairment, but the differences are relatively insignificant. -- 17 of 19 -- [2026] SADC 75 14 52 The fact that the 15 November email contains multiple hearsay is not, in itself, a reason to conclude that it is not an accurate or reliable record. As the applicants submitted, s 53 has a facilitative purpose to enable, in appropriate circumstances, documents that contain multiple hearsay to be admitted into evidence. In Tara Hills Pastoral, B Doyle J held the fact that the document may contain second hand or even more remote hearsay does not require a conclusion that the document is inadmissible.30 B Doyle J accepted that s 53 reflected a legislative assessment that, as a class, records produced in the ordinary course of business, are sufficiently reliable to justify the conclusion that, unless one of the exceptions applied, the efficiency to be gained by permitting their admission will outweigh the risks of inaccuracy. 53 Although there was no direct evidence about the safeguards in place at QBE, a number of facts can either be found directly or inferred which support a finding that the documents are reliable for the purposes of s 53(2). These facts are: first, QBE is a large insurer and in fact is the sole provider of builders warranty insurance in Australia; secondly, calls from members of the public are likely to be received at first instance by some form of centralised call centre and then passed to the relevant QBE representative; thirdly, given the way in which the call is received, the recording of the telephone conversation is likely to be made at the time that the phone call was received; fourthly, QBE has a concern, as the builders warranty insurer, that its insureds are in a sound financial position. This is reflected in its requirements for the annual review documents of the insured and its exposure as an insurer; fifthly, Ms Do and QBE acted upon the information that had been received such that they, it can be inferred, had sufficient confidence in the accuracy of the information that had been supplied; sixthly, the information that is alleged to have been supplied is concise and on its face, not complex or susceptible to various interpretations; seventhly, QBE is simply a recipient of the information that has been supplied to it and is not motivated to proffer its own interpretation of disputed events. 54 For these reasons, I am of the opinion that the 15 November email is sufficiently reliable such that its evidentiary weight is not slight. The respondent submitted that the position in relation to the QBE database record is very similar in terms of its unreliability and if anything was worse because of the use of the phrase “financial concerns” in contrast to the phrase “financial trouble” in the 15 November email. I have already addressed that difference in terminology and have found. I do not consider it to be of such significance that a conclusion should be reached that the QBE database record is unreliable. It is sufficient at trial if the applicants prove that the words found to have been spoken are substantially to the same effect as those pleaded.31 For the same reasons that have been expressed in relation to the 15 November email, I do not consider that the evidentiary weight of the QBE database record is slight. 30 [2025] SASC 200, [159]. 31 Wilson v Basson [2019] NSWSC 1449, [28]. -- 18 of 19 -- [2026] SADC 75 15 55 If it became relevant to consider, the prejudice that the respondent will suffer is not because of the admissibility of the documents into evidence but the inability to cross-examine anyone about the phone call. The respondent is not prevented from giving evidence about the phone call or the Court observing her in cross- examination. The case is distinguishable from Crossley where the appellant in that case could not give any evidence that might pertain to the accuracy of the blood alcohol reading except to say that he had not consumed any alcohol. There may be evidence as to the surrounding circumstances which might assist the Court in determining how much weight to place on the documents when evaluating the evidence from the documents against the testimony of the respondent. This prejudice does not outweigh the evidentiary weight of the documents. 56 The Court therefore finds that s 53(2)(b) is not operative and therefore does not provide a basis for refusing to admit either the 15 November email or the QBE database record into evidence. Section 53(2)(c) 57 The respondent also submits that s 53(2)(c) is engaged. The respondent did not make any submission that, in the circumstances of this case, a 53(2)(c) raised different considerations from those that have been discussed in relation to s 53(2)(a) and (b) and in particular the reference to the multiple hearsay and the prejudice that the respondent will suffer. 58 The Court therefore finds, for the same reasons that have been referred to in relation to ss 53(2)(a) and s 53(2)(b), that s 53(2)(c) does not provide a basis for refusing to admit either the 15 November email or the QBE database record into evidence. Conclusion 59 For the reasons that have been expressed, the Court rules that the 15 November email and the QBE database record are admissible pursuant to s 53 of the Evidence Act and that none of the safeguards set out in s 53(2) of the Act apply. 60 Obviously, the admissibility of these documents does not determine the weight that should be afforded to them when determining the claim. The weight to be given to these records will fall to be determined by reference to the criteria in s 53(3) of the Act. If it is the case that the records conflict with oral evidence, the Court will assess credibility and probabilities of that evidence. It is open to the Court to prefer the sworn evidence that is tested in cross-examination, but the Court is capable of preferring contemporaneous business records if it finds those records to be more reliable than the oral testimony. -- 19 of 19 --